(a) Authority to Issue a Warrant. A state or federal magistrate acting
within or for the
territorial jurisdiction where the property or person sought is located, or from which it has
been removed, may issue a search warrant authorized by this rule.

(b) Persons or Property Subject to Search and Seizure. A warrant may
be issued for any of
the following:

(1) property that constitutes evidence of a crime;

(2) contraband, the fruits of crime, or things criminally possessed;

(3) property designed or intended for use, or which is or has been used
as the means of,
committing a crime;

(4) a person for whose arrest there is probable cause, or who is
unlawfully restrained.

(c) Issuing the Warrant.

(1) Warrant on Affidavit or Sworn Recorded Testimony.

(A) In General. A warrant other than a warrant on oral testimony
under Rule 41(c)(2) may
issue only on an affidavit or affidavits sworn to or sworn recorded testimony taken before
a state or federal magistrate and establishing the grounds for issuing the warrant.

(B) Examination. Before ruling on a request for a warrant, the
magistrate may require the
affiant or other witnesses to appear personally and may examine under oath the affiant and
any witnesses the affiant may produce. This examination must be recorded and made part
of the proceedings.

(C) Probable Cause. If the state or federal magistrate is satisfied that
grounds for the
application exist or that there is probable cause to believe they exist, the magistrate must
issue a warrant identifying the property or person to be seized and naming or describing with
particularity the person or place to be searched. The finding of probable cause may be based
upon hearsay evidence in whole or in part.

(D) Command to Search. The warrant must be directed to a peace
officer authorized to
enforce or assist in enforcing any law of this state. It must command the officer to search,
within a specified period of time not to exceed 14 days, the person or place named for the
property or person specified.

(E) Service and Return. The warrant must be served in the daytime,
unless the issuing
authority, by appropriate provision in the warrant, and for reasonable cause shown,
authorizes its execution at times other than daytime. It may designate a state or federal
magistrate to whom it must be returned.

(2) Warrant on Remote Communication.

(A) In General. When reasonable under the circumstances, a state or
federal magistrate may
issue a warrant based on sworn oral testimony communicated by telephone or other
appropriate means.

(B) Application. The person requesting the warrant must prepare a
duplicate original
warrant and must read the duplicate original warrant, verbatim, to the magistrate. The
magistrate must enter, verbatim, what is so read to the magistrate on the original warrant. The
magistrate may direct the warrant to be modified.

(C) Issuance. If the magistrate is satisfied that grounds for the
application exist or that there
is probable cause to believe that they exist, the magistrate must order the issuance of a
warrant by directing the person requesting the warrant to sign the magistrate's name on the
duplicate original warrant. The magistrate must immediately sign the original warrant and
enter on the face of the original warrant the date and time when the warrant was ordered to
be issued. The finding of probable cause for a warrant on oral testimony may be based on
the same kind of evidence as is sufficient for a warrant on affidavit.

(D) Recording and Certifying Testimony. If a caller informs the
magistrate that the purpose
of the call is to request a warrant, the magistrate must immediately place under oath each
person whose testimony forms the basis of the application and each person applying for that
warrant. If a voice recording device is available, the magistrate must use the device to record
the call. Otherwise a stenographic or longhand verbatim record must be made. If a longhand
verbatim record is made, the magistrate must file a signed copy with the court.

(E) Contents. The contents of a warrant on oral testimony are the same
as the contents of
a warrant on affidavit.

(F) Additional Rules for Execution. The person who executes the
warrant must enter the
exact time of execution on the face of the duplicate original warrant.

(G) Motion to Suppress Precluded. Absent a finding of bad faith,
evidence obtained under
a warrant issued under Rule 41(c)(2) is not subject to a motion to suppress on the ground that
it was not reasonable under the circumstances to issue the warrant on oral testimony.

(3) Warrant by Electronic Transmission.

(A) General Rule. An affidavit in support of a warrant may be
submitted by electronic
transmission. A warrant may be transmitted by electronic transmission.

(B) Application. The magistrate must orally administer the oath or
affirmation to the affiant
over the telephone. The affiant must sign the affidavit and submit the affidavit to the
magistrate by electronic transmission. An affidavit sworn to a magistrate over the telephone
is sworn to before a magistrate for the purposes of Rule 41(c).

(C) Issuance. The magistrate must note on the warrant the date and
time of issuance of the
warrant, and indicate on the warrant that the supporting affidavit was sworn to over the
telephone. The electronic transmission has the same effect as the original.

(D) Execution. The person who executes the warrant must enter the
date and time of the
execution on the face of the warrant.

(4) Warrant Seeking Electronically Stored Information. A warrant
under Rule 41(c) may
authorize the seizure of electronic storage media or the seizure or copying of electronically
stored information. Unless otherwise specified, the warrant authorizes a later review of the
media or information consistent with the warrant. The time for executing the warrant refers
to the seizure or on-site copying of the media or information, and not to any later off-site
copying or review.

(d) Execution and Return With Inventory.

(1) Inventory. An officer present during the execution of the warrant
must prepare and
verify an inventory of any property seized. The officer must do so in the presence of the
applicant for the warrant and the person from whom, or from whose premises, the property
was taken. If either one is not present, the officer must prepare and verify the inventory in
the presence of at least one other credible person. In a case involving the seizure of electronic
storage media or the seizure or copying of electronically stored information, the inventory
may be limited to describing the physical storage media that were seized or copied. The
officer may retain a copy of the electronically stored information that was seized or
copied.

(2) Receipt. The officer taking property under the warrant
must:

(A) give a copy of the warrant and a receipt for the property taken to
the person from whom
or from whose premises the property was taken; or

(B) leave a copy of the warrant and receipt at the place from which the
officer took the
property.

(3) Return. The officer executing the warrant must promptly return
it--together with a copy
of the inventory--to the magistrate designated on the warrant. The magistrate on request must
give a copy of the inventory to the person from whom, or from whose premises, the property
was taken and to the applicant for the warrant.

(e) Motion for Return of Property. A person aggrieved by an unlawful
search and seizure
of property or by the deprivation of property may move the trial court for the property's
return. The court must receive evidence on any factual issue necessary to decide the motion.
If it grants the motion, the court must return the property to the moving party, although the
court may impose reasonable conditions to protect access and use of the property in later
proceedings. If a motion for return of property is made or heard after an indictment,
information, or complaint is filed, it must be treated also as a motion to suppress under Rule
12.

(f) Motion to Suppress. A motion to suppress evidence may be made
in the trial court as
provided in Rule 12.

(g) Return of Papers to Clerk. The magistrate to whom the warrant is
returned must attach
to the warrant a copy of the return, inventory and all other related papers and must file them
with the clerk of the trial court.

(h) Scope and Definitions.

(1) Scope. This rule does not modify any statute regulating search or
seizure, or the
issuance and execution of a search warrant in special circumstances.

(2) Definitions. The following definitions apply under this
rule:

(A) "Property" includes documents, books, papers and any other
tangible objects.

(B) "Daytime" means the hours from 6:00 a.m. to 10:00 p.m.
according to local time.

Rule 41 is an adaptation of Fed.R.Crim.P. 41 and is designed to
implement the provisions
of Article I, Section 8, of the North Dakota Constitution and the Fourth Amendment to the
United States Constitution, which guarantee, "The right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches and seizures shall not be
violated; and no warrant shall issue but upon probable cause, supported by oath or
affirmation, particularly describing the place to be searched and the persons and things to be
seized." To implement this constitutional protection, an illegal search and seizure will bar
the use of such evidence in a criminal prosecution. The suppression sanction is imposed in
order to discourage abuses of power by law enforcement officials in conducting searches and
seizures.

Subdivision (a) provides that a search warrant be issued by a
magistrate, either state or
federal, acting within or for the territorial jurisdiction. The provision which permits a federal
magistrate to issue a search warrant is the reciprocal of the federal rule, which permits a state
magistrate to issue a search warrant pursuant to a federal matter. It is contemplated that a
search warrant will be issued by a federal magistrate only on the nonavailability of a state
magistrate.

Subdivision (a) does not require that the individual requesting the
search warrant be a law
enforcement officer. There appears to be common-law support for the use of the search
warrant as a means of getting an owner's property back. The primary purpose of the rule,
however, is the authorization of a search in the interest of law enforcement and as a practical
matter the request for issuance of a search warrant by someone other than a law enforcement
officer is virtually nonexistent.

Subdivision (b) describes the property or persons which may be seized
with a lawfully
issued search warrant. Issuance of a search warrant to search for items of solely evidential
value is authorized. There is no intention to limit the protection of the Fifth Amendment
against compulsory self-incrimination, so items that are solely "testimonial" or
"communicative" in nature might well be inadmissible on those grounds.

Paragraph (c)(1) follows the federal rule except that North Dakota's
rule permits the
issuance of a warrant on sworn recorded testimony without an affidavit. Probable cause for
the issuance of a search warrant should be assessed under the totality-of-circumstances test.

The provision for examination of the affiant before the magistrate is
intended to assure the
magistrate an opportunity to make a careful decision as to whether there is probable cause
based on legally obtained evidence. The requirement that the testimony be recorded is to
insure an adequate basis for determining the sufficiency of the evidentiary grounds for the
issuance of the search warrant if a motion to suppress is later filed.

The language of subparagraph (c)(1)(E), "for reasonable cause
shown," is intended to
explain the necessity for executing the warrant at a time other than the daytime. This
provision is intended to be a substantive prerequisite to the issuance of a warrant that is to
be executed at a time other than daytime, although it is not necessary that the quoted
language ("for reasonable cause shown") be defined in subdivision (h).

Paragraph (c)(2) establishes a procedure for the issuance of a search
warrant when it is not
reasonably practicable for the person obtaining the warrant to present a written affidavit to
a magistrate as required by paragraph (c)(1). A warrant may be issued on the basis of an oral
statement of a person not in the physical presence of a magistrate. Telephone, radio,
interactive television, or other electronic methods of communication are contemplated.

Subparagraph (c)(2)(D) was amended, effective March 1, 2006, to
delete a sentence
requiring immediate transcription of the record of a remote communication.

Paragraph (c)(3) was added, effective January 1, 1995, to provide for
the issuance of
warrants by facsimile transmission without the personal appearance of the affiant. Paragraph
(c)(3) was amended, effective March 1, 2006, to substitute the term "electronic" for
"facsimile." This change was intended to expand the means available for obtaining a warrant
without the personal appearance of the affiant to include facsimile, e-mail, and other
electronic transmission methods.

Paragraph (c)(4) was added and paragraph (d)(1) was amended,
effective __________, to
provide guidelines for warrants authorizing the seizure of electronic storage media and
electronically stored information and for the inventory of seized electronic material. The
amendments were based on the December 1, 2009, amendments to Fed.R.Crim.P.
41.

Subdivision (d) is intended to make clear that a copy of the warrant
and an inventory receipt
for property taken shall be left at the premises at the time of the lawful search or with the
person from whose premises the property is taken if he is present.

Subdivision (e) requires that the motion for return of property be made
in the trial court
rather than in a preliminary hearing before the magistrate who issued the warrant. It further
provides for a return of the property if: (1) the person is entitled to lawful possession, and
(2) the seizure is illegal. However, property which is considered contraband does not have
to be returned even if seized illegally. The last sentence of subdivision (e) provides that a
motion for return of property, made in the trial court, shall be treated as a motion to suppress
under N.D.R.Crim.P. 12. The purpose of this provision is to have a series of pretrial motions
disposed of in a single appearance, such as at a Rule 17.1 (Omnibus Hearing), rather than
in a series of pretrial motions made on different dates causing undue delay in administration.

Subdivisions (a), (b), and (c) were amended in 1983, effective
September 1, 1983, to add
persons as permissible objects of search warrants. These amendments follow 1979
amendments to Fed.R.Crim.P. 41 and are intended to make it possible for a search warrant
to issue to search for a person if there is probable cause to arrest that person; or that person
is being unlawfully restrained.

Subdivisions (c) and (d) were amended, effective March 1, 1990. The
amendments are
technical in nature and no substantive change is intended.

Subdivision (e) was amended, effective March 1, 1992, to track the
federal rule.

Rule 41 was amended, effective March 1, 2006, in response to the
December 1, 2002,
revision of the Federal Rules of Criminal Procedure. The language and organization of the
rule were changed to make the rule more easily understood and to make style and
terminology consistent throughout the rules.